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Sadh Vs. Panu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberAppeal No. 144 of 1949
Judge
Reported inAIR1951HP49
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100 and 101 - Order 61, Rule 21
AppellantSadh
RespondentPanu and anr.
Appellant Advocate K.S. Sautha, Adv.
Respondent Advocate Amar Chand Hoshiarpuri, Adv.
DispositionAppeal dismissed
Cases ReferredRahmat Ilahi v. Mohammad
Excerpt:
- .....allegations of the defts. were false. he, however, did not consider it necessary to discuss the pltf's evidence. he, accordingly, decreed the suit. 8. an appeal was taken to the dist. j. in a well-balanced & exhaustive judgment, the learned dist. j. touched upon all the issues, especially the issue regarding the limitation. he found that the action was barred by limitation. he also gave his finding with regard to the merits of the case & found that the pltf. had not proved the allegation contained in his plaint. he found the defts' version of the story proved by their evidence. in the result, he reversed the judgment & decree of the senior subordinate judge. & dismissed the suit. 9. this is the pltf's second appeal. 10. the learned counsel for the applt. argues that when the lower ct......
Judgment:

Bannerji, J.

1. This is an appeal from a judgment & decree, dated 25-7-1949, of the Dist. J. reversing a judgment & decree dated 27-11-1948, of the Senior Subordinate Judge, with the result that the pltf's suit was dismissed.

2. The pltf, Sadh, commenced the action by a plaint, dated 7-7-1948, alleging that in Savan 2002, corresponding to July 1945 he had sold two pack-mulea & potato-crops of two fields to the defts for Rs. 3000. (Rupees three thousand) & allowed him credit till Poh for payment. The defts. made payments from time to time & at the time of the action, a balance of Rs. 750 (Rupees seven hundred and fifty) was still due from them.

3. The defts, Panu & Rela, two brothers, resistedthe suit on the ground that the purchase was madein Savan 2001 & not in Savan 9002, as alleged inthe plaint & that they had paid the price in fullthat had been settled between them.

4. On 3-8-1948, the deft. Panu's statement was recorded. He stated that the price was fixed at Rs. 2,000 & he had paid Rs. 1,000, at the time the bargain was struck & twenty or twenty-five days later on, he raid the balance.

5. The pltf. did not submit himself to make any statement under Order 10, Rule 1, C. P. C. On his behalf, his attorney gave a statement, supporting generally the allegations in the plaint & for the first time, making a further allegation that some quantities of gram were sold to the defts. the price of which was still due from them.

6. The following issues were joined, namely:

(1) When did the transaction take place?

(2) What was the price settled in respect of the transaction

(3) Did the defts, purchase only the mules? If so, did they pay the price in full

(4) Is the suit within limitation?

(5) If the pltf. had sold the potato crops to the defts., did he, in contravention of the stipulation, sell the potatoes to somebody else other than the delta

(6) Farther reliefs, if any.

7. It may be observed that there was no issue regarding the sale of gram. The issues, (1) & (2), the learned Senior Subordinate Judge decided in favour of the pltf. As regards issue (4), he found that the action was brought within the period of limitation. As regards issue (3), he found that upon the evidence of the defts, it was not proved that an amount of Rs. 1,000 (Rupees one thousand) was paid on the spot & before the delivery of the mules, the balance was paid. He held that the allegations of the defts. were false. He, however, did not consider it necessary to discuss the pltf's evidence. He, accordingly, decreed the suit.

8. An appeal was taken to the Dist. J. In a well-balanced & exhaustive judgment, the learned Dist. J. touched upon all the issues, especially the issue regarding the limitation. He found that the action was barred by limitation. He also gave his finding with regard to the merits of the case & found that the pltf. had not proved the allegation contained in his plaint. He found the defts' version of the story proved by their evidence. In the result, he reversed the judgment & decree of the Senior Subordinate Judge. & dismissed the suit.

9. This is the pltf's second appeal.

10. The learned counsel for the applt. argues that when the lower Ct. differed in their opinion, as regards the inferences from proved facts, a second appeal lies. The position has been made clear by their Lordships of the P. C. in Lala, Brrjlal v. Inder Kunwar, A. I. R. (1) 1914 P. C. 38 at p. 40: (36 ALL 187). Their Lordships laid down that if the question referred to the inferences from proved facts, the question was the question of law whether such inferences were correct or not This question is included in what is known as 'decision being contrary to law', under Section 100 C. P. C., as laid down in Rahmat Ilahi v. Moham-mad, A. I. R. (30) 1943 P. C. 208: (70 I. A. 225) and also in Damusa v. Abdul Samadt 46 I. a. 140 (A. I R. (6) 1919 P. C. 29).

11. The learned counsel attacks the inference which the learned Dist. J. has drawn from the facts appearing in evidence on record regarding the issue (4), namely, limitation. He refers me to the document, known as Ex DW2/A. This document purports to be a receipt given by one Lagnu, son of Anantiya, one of the defts' witnesses.

12. I may state here that reliance cannot be had upon the learned Senior Subordinate Judge's description of the witnesses as D. Ws. 1, 2 & 3 or p.ws. l, 2 & 3. The whole case before me appears to have been conducted in a very indifferent & careless manner. The learned Subordinate Judge has not paid sufficient attention to the procedure. I lament the way he has recorded the evidence of the entire case. In the beginning, I may mention that be has adopted the peculiar procedure, censored by the Dist. J. in his judgment, of calling upon the pltf. as defts.' witness & vice versa. Where the pltf. refrains from giving evidence on his own behalf & adopts instead the tactics of calling the deft, as a witness for the pltf. with the usual result that the important features of the pltf's case are denied by the deft., the procedure has been condemned by their Lorships of the P. C. in Shatrugan v. Shamdas, A. I. R. (25) 1938 P. C. 59: (32 Section L. R. 308).

13. The witnesses in the Ct. of first instance have been examined in a careless manner & it is difficult to find out from the record which is the pltf's. witness 2 or deft's witness 1.

14. Now to revert to the main question regarding the document, Ex DW2/A, I find that this document was produced by the pltf. at the end of his case & it was shown, in cross-examination, to one Lagnu, son of Anantiya, deft's, witness. This receipt purports to have been given by this Lagnu to the pltf. when the latter had purchased these two mules. If the evidence of Lagnu, son of Anantiya, is compared with the answers he gave in cross-examination, when the document was shown, it will be clear that this document could not be received in evidence. Neither the pltf's mukhtiar during his examination on 3-7-1948, under the provisions of Order 10, Rule 1, C. P. C., nor the pltf's evidence recorded soon afterwards even mentions the existence of this document. Kashi Ram is alleged to be the scribe of this document, Kashi Ram was pltf's own witness. This document was not shown to him for identification. Lagnu, son of Anantiya, is alleged to be the executant of this document. His signature on this document was not proved. In the circumstances, I must hold that this document cannot be received in evidence & cannot help the pltf.

15. The second point urged by the learned counsel is that witness Almu, examined on 22-11-1948, in the Ct. of first instance, stated that this was the fourth year since the negotiation of sale was completed. Neither the Ct. of first instance nor the first appellate Ct. paid any attention to this bare statement of Alma, unsupported by any other evidence. It is contended here that this statement of Almu should have been given the proper weight by the Cts below. But there is no second appeal against the weight of evidence as held in Rahmat Ilahi v. Mohammad, cited above. (A. I. R. (30) 1943 P.C. 208 : 70 I. A. 225). (His Lordship after discussing the relevant evidence proceeded:)

16-17. I entirely agree with the conclusions of the learned Judge that the claim even if it be true, was barred at the time of the suit. (His Lordship agreed with 'the reasoning of the Ses. J. on the merits of the case. His Lordship then proceeded:)

18-19. I agree with the reasoning of the learned Dist. J. & it seems to me that he has applied sound principles of the adjudication to the facts of the case.

20. In my judgment, the pltf has over-reached himself & brought an action which is not only clearly time-barred but also based upon evidence that does not bear on it any trace of truth.

21. I would, therefore, dismiss the appeal & affirm the judgment & decree of the learned Dist. J. The pltf. applt. must pay the cost throughout.


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